State v. Gregory

[Cite as State v. Gregory, 2020-Ohio-5207.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28695
:
v. : Trial Court Case No. 2017-CR-2286/1
:
KYLEN GREGORY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 6th day of November, 2020.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant

.............

WELBAUM, J.
 -2-

{¶ 1} Kylen Gregory appeals from a reverse bindover decision in which the juvenile

court concluded that Gregory was not amenable to rehabilitation in the juvenile system

after he was convicted in adult court of murder, felonious assaults, discharge of a firearm

on or near a prohibited premises, and a firearm specification. According to Gregory, the

juvenile court abused its discretion in finding a lack of amenability because the court made

errors in factfinding. In addition, Gregory contends that the juvenile court’s decision was

against the manifest weight of the evidence.

{¶ 2} We conclude that the juvenile court did not abuse its discretion in making

certain factual findings concerning Gregory’s amenability for rehabilitation within the

juvenile system. Although the court’s finding concerning one factor in R.C. 2152.12(D)

was incorrect, any error was harmless, as it involved a minor point, and the court relied

more heavily on other factors, including a psychological evaluation of Gregory.

Furthermore, the court’s decision that Gregory was not amenable to rehabilitation in the

juvenile system was not an abuse of discretion, nor was it against the manifest weight of

the evidence. Accordingly, the judgment will be affirmed.1

I. Facts and Course of Proceedings

{¶ 3} This case arises from a series of events that began on September 3, 2016,

when Gregory stole a Smith & Wesson revolver and six bullets from his grandfather’s

house. At the time, Gregory was 16 years old and was a sophomore at Fairmont High

1 Gregory filed a notice of appeal from the trial court’s December 31. 2019 order imposing
the adult sentence after the case was remanded to adult court. However, Gregory has
not raised any issues pertaining to the adult court case; his sole assignments of error are
directed to the juvenile court’s bindover decision.
 -3-

School in Kettering, Ohio. When Gregory stole the gun, he loaded the bullets into the

gun and placed it in an overnight bag. The next day, Gregory took the gun to his house

in Kettering, and then took it to Kanter Park in Kettering, where he met with several

friends. According to Gregory’s trial testimony, he intended to sell the gun to a friend.

Because the friend did not have the money for the gun, Gregory then took the gun to the

Alterfest festival, which he had previously planned to attend with his friends. Trial

Transcript (Adult Tr.), p. 461-462, 478, and 481-483.

{¶ 4} Gregory was part of a friend group or gang called BSK or GLO. This gang

was prominent in Kettering and was known as a bunch of boys who did bad things. BSK

referred to the streets (Beaver, Sutton, and Kanter) where some members lived, and GLO

referred to the initials of a member who had previously died from gun violence.

Amenability Hearing Transcript (“Amenability Tr.”), p. 18, 33, 34, 35, 45, 155, and 188.

The members of BSK/GLO were M.K., Jerry Tanner, Kylen Gregory, and Miles Heizer.

Id. at p. 34.2 Tanner had an ongoing problem with Cameron Wilson since June 2016,

because Wilson had sold marijuana to Tanner’s girlfriend and did not give her the correct

amount. Id. at p. 31-32.

{¶ 5} Wilson also attended Alterfest on September 4, 2016, with a group of his

friends. On that day, R.B. and Wilson picked up M.M. and J.T. at J.T.’s house around

6:30 p.m.3 They then went to an apartment complex so that Wilson could buy marijuana.

2 Because more than four years have passed since the incident, nearly all the participants
are adults now. However, one individual in BSK/GLO was only 14 at the time and may
still be a juvenile. As a result, we will use initials to protect his privacy.
3We are also using initials for the driver of the car and two occupants, because they were
minors at the time of the crime and may have still been minors at the time of the
amenability hearing.
 -4-

While there, the four smoked marijuana and then left for Alterfest about a half-hour later.

They arrived at Alterfest at 7:00 or 7:30 p.m. Adult Tr. at p. 182-186. R.B. parked the

car on Willowdale Drive, which was in the area of the festival. Amenability Tr. at p. 24-

25.

{¶ 6} Very shortly after arriving at the festival, Wilson encountered Tanner,

Gregory, and M.K., who were dressed in all white clothing. Id. at p. 21. Tanner and

M.K. confronted Wilson and wanted to fight him, but Wilson refused. Adult Tr. p. 102,

270, and 329. When Wilson said he did not want to fight, both groups walked away from

each other. Id. at p. 103 and 330. After the altercation, Wilson told his friends that they

needed to leave, and they began walking to where R.B. had parked the car. Wilson saw

someone following them, so he told R.B. to run to the car; they then did so. The girls

(M.M. and J.T.) were following behind them, walking at a slower pace. Amenability Tr.

at p. 23 and 157.

{¶ 7} The people following Wilson included C.H., who was Heizer’s younger

brother. Id. at p. 157.4 C.H. called Heizer to tell him where Wilson was headed, and

Heizer, Gregory, Tanner, M.K., and a person named “Chicago” then went to Heizer’s car,

which was parked closer to the festival. Adult Tr. at p. 333. They eventually found C.H.

and his friend, who pointed them to Willowdale Drive. Id. at p. 242. The people in

Heizer’s car anticipated that they were going to a fight. Id. at p. 91, 104, and 467.

{¶ 8} In the meantime, Wilson, R.B, M.M., and J.T. had gotten in R.B.’s car, and

R.B. had driven up into a driveway at 808 Willowdale, with the intent to turn around. Id.

4 This individual’s age is unknown, so we will use his initials as well.
 -5-

at 192. However, Heizer went behind R.B.’s car to try to block him. Id. at p. 106. At

that point, people in Heizer’s car got out and began banging on the front windows of R.B.’s

car, attempting to get Wilson out of the car. R.B. was able to reverse and get out of the

driveway because it was not totally blocked. However, as R.B. tried to drive away,

Gregory shot at the vehicle. Id. at p. 107, 195, 276.

{¶ 9} The shot hit R.B., and he slumped into Wilson’s lap. At that point, the car

was still moving, going toward houses and a tree. Wilson then grabbed the wheel,

pressed the brake, and the car stopped. Both J.T. and M.M. had jumped from the car.

Wilson exited the car and ran from the scene because he was afraid he would be pursued.

He eventually took shelter at a nearby home where a friend of M.M. lived. The police

were then called. Adult Tr. at p. 201-293, 278-290, 341, 345, and 471; Amenability Tr.

at p. 28 and 160. When M.M. jumped from the car, the boys from Heizer’s car were

chanting and yelling. M.M. could not tell what they were saying, but the tone was “ ‘yeah,’

like I just did that, like ‘yeah,’ hyping it up.” Amenability Tr. at p. 162.

{¶ 10} The bullet penetrated the glass in the car’s rear window, went through the

headliner, which was composed of foam, fabric, and cardboard, skimmed across the car’s

interior roof, and came downward, striking R.B. in the right side of the back of his head.

Although R.B. was transported to the hospital, he died two days later, with the cause of

death being a gunshot wound to the head. Adult Tr. at p. 24, 52, 390, and 392. There

was no indication that any of the people involved in the pursuit and shooting knew R.B.

before that night. Id. at p. 329 and 460; Amenability Tr. at p. 41.

{¶ 11} After the shooting, Gregory went home, changed from a white shirt to a dark
 -6-

shirt, put a cast on his arm, and returned to the festival. Adult Tr. at p. 420-422 and 476.5

Tanner took the gun with him, cleaned it, and hid it in a trashcan in the laundromat in his

apartment building. Id. at p. 347-349.

{¶ 12} On September 6, 2016, a complaint for felonious assault was filed in

juvenile court, alleging that Gregory was delinquent due to having knowingly caused

physical harm to R.B. Gregory was then remanded to juvenile custody. On October 26,

2016, the State filed an amended complaint, adding charges for murder, with a three-year

firearm specification; felonious assault (deadly weapon), with a three-year firearm

specification; felonious assault (serious physical harm), with a three-year firearm

specification); discharge of a firearm on or near prohibited premises (causing serious

physical harm); and grand theft of a firearm. The State also filed a motion to transfer the

case to adult court under both mandatory and discretionary transfer statutes.

{¶ 13} After holding a probable cause hearing, the juvenile court filed a decision

on February 7, 2017, concluding that probable cause existed to believe that Gregory had

committed the alleged offenses. The court then ordered a mental examination and a

social history investigation, and it scheduled an amenability hearing for April 7, 2017. In

addition, the court granted a defense request for an independent amenability evaluation.

The court then held an amenability hearing on May 24, 2017, but continued the hearing

for presentation of further testimony.

{¶ 14} However, before the hearing process could be concluded, the State filed

another motion to transfer Gregory to adult court. This motion was based on a change

5 The cast was a removable one that Gregory had gotten due to an injury. Amenability
Tr. at p. 72.
 -7-

in Ohio jurisprudence, which previously had held that mandatory transfer of a juvenile to

adult court violates due process. See State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-

8278, 83 N.E.3d 862, paragraph one of the syllabus. That decision was vacated on

reconsideration in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883,

which was issued on May 25, 2017. Based on the fact that mandatory transfer was now

allowed, the State argued that Gregory’s transfer to adult court was required. The

juvenile court agreed, and on July 20, 2017, granted the State’s motion for an immediate

transfer to adult court.

{¶ 15} Gregory appealed from that decision on August 10, 2017, but then

voluntarily dismissed the appeal on October 6, 2017. Previously, an indictment had been

filed in the common pleas court on August 8, 2017, charging Gregory with two counts of

murder, one count of discharge of a firearm on or near prohibited premises, and five

counts of felonious assault (two counts relating to R.B. and the other three relating to the

other individuals in the car). All counts included firearm specifications.

{¶ 16} In November 2018, a jury trial took place in the common pleas court. The

jury found Gregory guilty of two counts of reckless homicide as a lesser included offense

of the murder charges and discharge of a firearm on or near a prohibited premises

(causing serious physical harm), along with the attendant firearm specifications to these

charges. The jury was unable to reach a verdict on the remaining charges, and a new

trial was scheduled. However, on April 23, 2019, Gregory pled guilty to five counts of

felonious assault, and, by agreement, the State dismissed the remaining firearm

specifications. See Entry of Waiver and Plea.

{¶ 17} After merging the offenses and firearm specifications, the trial court
 -8-

sentenced Gregory to a total of 11 years in prison, including a mandatory three-year

sentence for the firearm specification. The court also credited Gregory with 1,012 days

of confinement as of the sentencing date of June 13, 2019. And finally, the court stayed

its sentence pursuant to R.C. 2152.121 and transferred the case back to juvenile court

for further “reverse bindover” proceedings, noting that the charges of which Gregory was

convicted were different from the charges originally filed in the juvenile court and would

have allowed discretionary transfer but would not have required mandatory transfer to the

adult court. Judgment of Conviction, p. 3.

{¶ 18} After the case was transferred back to juvenile court, the State filed an

objection to imposition of a serious youthful offender (“SYO”) disposition sentence and

asked the court to conduct an amenability hearing. The juvenile court then ordered

updates of the prior psychological reports and the probation department’s court

investigation report (“CIR”). In addition, the court scheduled an amenability hearing for

October 7, 2019. During the amenability hearing, which began on that day and ended

the next day, the court heard testimony from the following witnesses: Cameron Wilson;

Dr. Laura Fujimura, court psychologist for the Montgomery County Juvenile Court; M.M.;

Dr. Daniel Davis, who conducted an independent psychological evaluation; and Michael

Wallace, a youth specialist who was employed with the Montgomery County Juvenile

Detention Center.

{¶ 19} Additionally, the parties stipulated to the admission of several joint exhibits:

Ex. 1 (trial testimony from the Montgomery County Common Pleas Court case); Ex. 2A

(Juvenile Detention Records for 2016); Ex. 2B (Juvenile Detention Records for 2017); Ex.

2C (Juvenile Detention Records for 2018); Ex. 2D (Juvenile Detention Records for 2019
 -9-

through August 29, 2019); Ex. 3 (Dr. Fujimura’s psychological report); Ex. 4 (Dr. Davis’s

psychological report); and Ex. 5 (the CIR).

{¶ 20} After considering the evidence, the juvenile court filed an order on

December 4, 2019, concluding that Gregory was not amenable to rehabilitation in the

juvenile system and that community safety required that Gregory be subjected solely to

adult sanctions. Gregory then filed a notice of appeal on January 29, 2020, and later

asked for the appeal to be expedited. We sustained Gregory’s request for expedition on

March 18, 2020. On June 11, 2020, we also ordered that the record be supplemented

with the docket and journal entries from the juvenile court proceedings. Accordingly, the

appeal is ready for disposition.

II. Abuse of Discretion in Finding Lack of Amenability

{¶ 21} Gregory’s First Assignment of Error states that:

The Juvenile Court Abused Its Discretion in Finding a Lack of

Amenability to Rehabilitation in the Juvenile Justice System Through Errors

in Factfinding.

{¶ 22} The juvenile court concluded that Gregory was not amenable to

rehabilitation in the juvenile system. Gregory contends that the court abused its

discretion in this regard because it made errors in factfinding. According to Gregory, the

court erred in finding that Gregory’s relationship with R.B. facilitated the homicide; that

Gregory committed the charged act for hire or as part of a gang or other organized

criminal activity; that there was no provocation for the crime; and that Gregory’s actions

exacerbated the physical or psychological harm the victim suffered due to the victim’s
 -10-

physical or psychological vulnerability. The State acknowledges that the juvenile court

may have misconstrued the meaning of facilitating an offense. However, the State

argues that this matter was irrelevant due to the presence of other seriousness factors.

Appellee’s Brief, p. 18.

{¶ 23} There is no question that this was a reverse bindover situation under R.C.

2152.121(B)(3) and that the procedures under that section of the statute applied. In

cases where, as here, the State objects to an SYO disposition, “the juvenile court shall

hold a hearing to determine whether the child is not amenable to care or rehabilitation

within the juvenile system and whether the safety of the community may require that the

child be subject solely to adult sanctions.” R.C. 2152.121(B)(3)(b). In making this

decision, “the juvenile court shall consider the factors listed in division (D) of section

2152.12 of the Revised Code as factors indicating that the motion should be granted,

shall consider the factors listed in division (E) of that section as factors indicating that the

motion should not be granted, and shall consider whether the applicable factors listed in

division (D) of that section outweigh the applicable factors listed in division (E) of that

section.” Id. “If the juvenile court grants the motion of the prosecuting attorney under

this division, the juvenile court shall transfer jurisdiction of the case back to the court in

which the child was convicted of or pleaded guilty to the offense, and the sentence

imposed by that court shall be invoked.” Id.

{¶ 24} The factors in R.C. 2152.12(D) favoring transfer are as follows:

(1) The victim of the act charged suffered physical or psychological

harm, or serious economic harm, as a result of the alleged act.

(2) The physical or psychological harm suffered by the victim due to
 -11-

the alleged act of the child was exacerbated because of the physical or

psychological vulnerability or the age of the victim.

(3) The child's relationship with the victim facilitated the act charged.

(4) The child allegedly committed the act charged for hire or as a part

of a gang or other organized criminal activity.

(5) The child had a firearm on or about the child's person or under

the child's control at the time of the act charged, the act charged is not a

violation of section 2923.12 of the Revised Code, and the child, during the

commission of the act charged, allegedly used or displayed the firearm,

brandished the firearm, or indicated that the child possessed a firearm.

(6) At the time of the act charged, the child was awaiting adjudication

or disposition as a delinquent child, was under a community control

sanction, or was on parole for a prior delinquent child adjudication or

conviction.

(7) The results of any previous juvenile sanctions and programs

indicate that rehabilitation of the child will not occur in the juvenile system.

(8) The child is emotionally, physically, or psychologically mature

enough for the transfer.

(9) There is not sufficient time to rehabilitate the child within the

juvenile system.

{¶ 25} In this case, the juvenile court concluded that factors (1), (2), (3), (4), (5),

(7), (8), and (9) favored transfer. The factors weighing against transfer in R.C. 2152.12(E)

include the following items, as well as any other factors weighing against transfer:
 -12-

(1) The victim induced or facilitated the act charged.

(2) The child acted under provocation in allegedly committing the act

charged.

(3) The child was not the principal actor in the act charged, or, at the

time of the act charged, the child was under the negative influence or

coercion of another person.

(4) The child did not cause physical harm to any person or property,

or have reasonable cause to believe that harm of that nature would occur,

in allegedly committing the act charged.

(5) The child previously has not been adjudicated a delinquent child.

(6) The child is not emotionally, physically, or psychologically mature

enough for the transfer.

(7) The child has a mental illness or intellectual disability.

(8) There is sufficient time to rehabilitate the child within the juvenile

system and the level of security available in the juvenile system provides a

reasonable assurance of public safety.

{¶ 26} The only factor the court found that potentially weighed against transfer was

(5). However, even on this point, the court assigned only a neutral value to the factor.

Judge’s Order (Dec. 4, 2019), p. 11.

{¶ 27} Juvenile court decisions on “a child's amenability to rehabilitation in the

juvenile system” are reviewed for an abuse of discretion. In re M.P., 124 Ohio St.3d 445,

2010-Ohio-599, 923 N.E.2d 584, ¶ 14. An abuse of discretion is “an attitude that is

unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community
 -13-

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). We have

often said that “most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.

Furthermore, decisions are unreasonable if they are unsupported by a sound reasoning

process. “It is not enough that the reviewing court, were it deciding the issue de novo,

would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result.” Id.

{¶ 28} In considering this appeal, we have read the entirety of the voluminous

juvenile record, which includes the amenability hearing transcript, the adult court trial

transcript, the psychological evaluations of Gregory, the juvenile court investigation

report, and three years of daily documentation regarding Gregory’s conduct during

juvenile detention. These latter records, in particular, provide an extensive look at

Gregory’s conduct and progress while in detention.

{¶ 29} After reviewing the record, we find no abuse of discretion due to alleged

errors in the juvenile court’s factfinding. The court considered the appropriate statutory

factors, and the record contains “some rational and factual basis” to support its findings

concerning those factors. State v. Howard, 2d Dist. Montgomery No. 17298, 2018-Ohio-

1863, ¶ 15-16, quoting State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d

285, ¶ 10 (4th Dist.). See also State v. Hoskins, 2d Dist. Montgomery Nos. 27486 and

27487, 2018-Ohio-4529, ¶ 17. Under the abuse of discretion standard, “a juvenile court

‘ “enjoys wide latitude to retain or to relinquish jurisdiction.” ’ ” Howard at ¶ 15, quoting

State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 36 (8th Dist.). (Other citations omitted.)

{¶ 30} In Howard, we further stressed that “ ‘the test is not whether we would have
 -14-

reached the same result upon the evidence before the juvenile court; the test is whether

the juvenile court abused the discretion confided in it.’ ” Id. at ¶ 16, quoting State v.

Hopfer, 112 Ohio App.3d 521, 535, 679 N.E.2d 321 (2d Dist.1996). “If there is some

rational and factual basis to support the [juvenile] court's decision, we are duty bound to

affirm it regardless of our personal views of the evidence.” Id., citing West at ¶ 10.

“ ‘After all, the juvenile court judge is personally familiar with both the juvenile system and

the individual juvenile and is therefore in a superior position to make a determination

whether the juvenile is amenable to care or rehabilitation within the juvenile system.’ ”

Id., quoting State v. Drane, 2d Dist. Montgomery No. 23862, 2012-Ohio-1978, ¶ 34 (Fain,

J., dissenting).

{¶ 31} As a preliminary point, we do agree that the juvenile court misconstrued the

meaning of facilitating an offense under R.C. 2152.12(D)(3). “To facilitate means to

make easier. The American Heritage Dictionary (2 Ed.1985) 484. In order to have the

relationship facilitate the offense, the defendant must have used his relationship with the

victim to help commit the offense.” State v. Manley, 3d Dist. Allen No. 1-11-04, 2011-

Ohio-5082, ¶ 20, citing State v. McDade, 6th Dist. Ottawa Nos. OT-06-001, OT-06-004,

2007-Ohio-749. “In other words, the defendant must have used the relationship to allow

him to commit the offense in a manner which he could not have accomplished without the

relationship.” Id. Here, R.B. and Gregory had no relationship; in fact, they did not even

know each other. R.B. was simply an unfortunate bystander who was tragically killed as

a result of Gregory’s actions.

{¶ 32} Nonetheless, the court’s error in this regard was not prejudicial. As an

initial point, R.C. 2152.12 does not specify the weight to be given to any particular factor.
 -15-

Instead, the ultimate decision rests with the juvenile court. State v. Morgan, 10th Dist.

Franklin No. 13AP-620, 2014-Ohio-5661, ¶ 37. Accord State v. Lavender, 2019-Ohio-

5352, 141 N.E.3d 1000, ¶ 139 (1st Dist.). Furthermore, the doctrine is well-settled that

“[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded.” Crim.R. 52(A). “This language has been interpreted to ‘mean[ ] that

the error must have been prejudicial: It must have affected the outcome of the [trial] court

proceedings.’ ” (Emphasis and parenthetical material sic.) State v. Fisher, 99 Ohio

St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano, 507

U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

{¶ 33} Our review of the record indicates no possibility that the error affected the

outcome of the amenability proceeding. The juvenile court found transfer appropriate

based on many factors, and its decision appears to have relied most heavily on the

psychological evaluation and opinions of Dr. Fujimura, whom the court specifically found

persuasive. Judge’s Order (Dec. 4, 2019), p. 8.

{¶ 34} Gregory also contends that the court erred in concluding that he committed

the charged act for hire or as part of a gang or other organized criminal activity. See

R.C. 2152.12(D)(4). The statute does not define “gang,” and Gregory argues we should

apply the definition of a gang stated by an expert in State v. Stafford, 9th Dist. Summit

No. 24144, 2009-Ohio-701. In that case, a police officer stated that “ ‘[w]ithin Ohio a

gang is a group of three or more persons that go about together with a common name

and one or more common identifying signs, symbols or colors and their main purpose is

to commit criminal activity.’ ” Id. at ¶ 28.

{¶ 35} We decline the invitation. Stafford involved prosecution of a specific crime,
 -16-

R.C. 2923.42(A), which bars participation in criminal gang activity. R.C. 2923.42(A)

provides, in pertinent part, that:

No person who actively participates in a criminal gang, with

knowledge that the criminal gang engages in or has engaged in a pattern

of criminal gang activity, shall purposely promote, further, or assist any

criminal conduct, as defined in division (C) of section 2923.41 of the

Revised Code, or shall purposely commit or engage in any act that

constitutes criminal conduct, as defined in division (C) of section 2923.41 of

the Revised Code.

{¶ 36} The State was not required to prove that Gregory met the requirements of

this crime, nor did the juvenile court need to apply R.C. 2923.42 in order to find that

Gregory's acts were committed as part of a gang. However, even if one were guided by

the statute and the case that Gregory cites, there was some rational and factual evidence

in the record to support the conclusion that Gregory's action was part of gang activity.

{¶ 37} Specifically, there was evidence that Gregory, Tanner, M.H., and Heizer

were members of a prominent gang in Kettering called GLO or BSK that was known for

doing bad things. Amenability Tr. at p. 18-20, 33, 34, 155, and 188. As noted, one of

the members had previously died as a result of gun violence. Id. at p. 45. The members

of the group also appeared in all white clothing at the festival and challenged Cameron

Wilson to a fight based on an ongoing “beef” with him. When Wilson refused to fight, the

members of the gang pursued Wilson and his friends, believing a fight was going to occur.

Id. at p. 19. See also Adult Tr. at p. 91, 102, 104, 270, and 329. And, in the course of

that fight, Gregory discharged his weapon at the car – an action that can certainly be
 -17-

described as being intended to intimidate others. Thus, some rational and factual

evidence existed in the record to warrant the juvenile court’s conclusion that R.C.

2152.12(D)(4) supported transfer.

{¶ 38} Gregory also argues that the court erred in concluding that the victim did

not induce or facilitate the charged act, and that he acted under provocation. Appellant’s

Brief, p. 11-12. This argument relates to R.C. 2152.12(D)(3) and (E)(2). In this vein,

Gregory focuses on the fact that an ongoing “beef” existed between Wilson and Tanner,

due to the fact that Wilson had “shorted” Tanner’s girlfriend when selling her marijuana,

that other persons outside the BSK/GLO group may have had an altercation with Wilson

about his problem with Tanner, and that Wilson had an Airsoft gun in R.B.’s car the

evening of the incident. Id. at p. 12.

{¶ 39} The undisputed evidence discussed in the statement of facts clearly

indicated that Wilson refused to fight with anyone the evening of the incident and

attempted to flee – which he was prevented from successfully doing. More importantly,

the other victims in the car were completely innocent bystanders with no connection to

any ongoing feud between Wilson and the GLO/BSK group. There was not an iota of

evidence to support the contention that the victims provoked Gregory or that he acted

under provocation of any kind.

{¶ 40} Finally, Gregory takes issue with the juvenile court’s finding that his actions

exacerbated the physical or psychological harm the victims suffered due to the victim’s

physical or psychological vulnerability. This factor relates to R.C. 2152.12(D)(2), which

indicates that a factor favoring transfer is that “[t]he physical or psychological harm

suffered by the victim due to the alleged act of the child was exacerbated because of the
 -18-

physical or psychological vulnerability or the age of the victim.”

{¶ 41} According to Gregory, the record fails to disclose that “any of the victims

were psychologically or physically infirm or that they were impaired at the time of the

incident.” In this regard, Gregory focuses solely on the juvenile court’s comment that

“[s]uch events would be a traumatic experience for anyone, especially adolescents.”

Appellant’s Brief at p. 12.

{¶ 42} In discussing this factor, the juvenile court remarked that:

The victims were teenagers in 2016. They were confronted by a

hostile group of four individuals. They were followed and tracked by the

initial hostile group of four as well as two other youths associated with that

group as they tried to retreat. Their escape was prevented when they were

trapped in a residential driveway by the hostile group, who surrounded their

vehicle yelling, striking, and rocking the vehicle. Three of them witnessed

a friend shot in the back of the head as he tried to maneuver his vehicle

away from the danger. Three victims bailed out of a moving vehicle and a

storm of glass to the soundtrack of a gunshot and a hostile group yelling

and celebrating the victims’ fear. They then hid behind a house and trees.

Such events would be a traumatic experience for anyone, especially

adolescents.

R.B. was only sixteen years old when he lost his life. While the loss

of any life is tragic, R.B.’s age amplifies the tragedy.

Judge’s Order (Dec. 4, 2019), p. 4.

{¶ 43} What Gregory fails to mention is that age, and not just physical or
 -19-

psychological vulnerability – is specifically mentioned in R.C. 2152.12(D)(2). The

juvenile court therefore appropriately considered the impact of the victims’ ages. We

also note that one victim, M.M., indicated that she had been very affected, had missed

many days of school, went to counseling, and took anti-depressant pills. Amenability Tr.

at p. 163. M.M. further said that she thought about the incident every day. Id.

Accordingly, the juvenile court did not err in factfinding concerning this factor.

{¶ 44} Based on the preceding discussion, we find no abuse of discretion that

resulted from the juvenile court’s alleged erroneous factfinding. The First Assignment of

Error, therefore, is overruled.

III. Manifest Weight

{¶ 45} Gregory’s Second Assignment of Error states that:

The Juvenile Court Abused Its Discretion in Finding a Lack of

Amenability to Rehabilitation in the Juvenile Justice System, as the Decision

is Against the Manifest Weight of the Evidence.

{¶ 46} In discussing this assignment of error, Gregory incorporates the arguments

he has previously made and contends that, based on the court’s faulty analysis, the court

was unfairly skewed against amenability. Since we have found that the court’s analysis

was mostly correct, there is no basis on which to conclude that the court’s decision was

unfairly skewed by incorrect factfinding.

{¶ 47} Gregory’s next point is that the juvenile court improperly ignored his

achievements and rehabilitative progress during three years of incarceration. In this

regard, Gregory focuses on positive testimony from a youth specialist, Gregory’s own lack
 -20-

of violence or fights during detention, the fact that he has always attained a level three

behavioral status (the highest level available), the fact that his disciplinary problems

“primarily involve issues such as being silly, dancing in class, horseplay or having

contraband,” his expression of regret for his wrongdoing, the fact that his misconduct

began in late school age and early adolescence, which has the prospect of a better

outcome and less likelihood of remaining persistent in adulthood, the fact that he is close

to achieving his high school diploma, and the fact that his behavioral issues have

decreased over time. Appellant’s Brief at p. 14-18.

{¶ 48} Before addressing these matters, we note that a few decisions have applied

a manifest weight standard to amenability issues. See State v. Davis, 11th Dist. Lake

No. 2002-L-127, 2003-Ohio-6741, ¶ 31; State v. Early, 6th Dist. Lucas No. L-84-339, 1985

WL 7059, *2 (Mar. 1, 1985). However, the general standard for reviewing amenability

decisions is whether the juvenile court abused its discretion. E.g., M.P., 124 Ohio St.3d

445, 2010-Ohio-599, 923 N.E.2d 584, at ¶ 14. And again, the issue is whether the record

contains some rational and factual basis to support the court's findings. Howard, 2d Dist.

Montgomery No. 17298, 2018-Ohio-1863, at ¶ 15-16. Regardless of the standard

applied, however, reversing the juvenile court’s decision in this case is unjustified for

several reasons.

{¶ 49} As indicated, Gregory contends that the juvenile court ignored his

achievements and rehabilitative progress while in detention. The court did not discuss

the detention record in great detail; instead, it primarily relied on the psychological

evaluation and testimony of Dr. Fujimura, who did discuss Gregory’s conduct during

detention. The court also rejected Dr. Davis’s opinion that Gregory was already on his
 -21-

way to rehabilitation, stating that Davis’s opinion appeared “to have been based on a very

small percentage” of Gregory’s negative detention log notations. Judge’s Order, Dec. 4,

2019) p. 13.

{¶ 50} Under settled law, the juvenile court could disregard any part of these

doctors’ testimony or could assign any weight to the testimony. State v. Nicholas, 2d

Dist. Champaign No. 2018-CA-25, 2020-Ohio-3478, ¶ 67, citing State v. Easley, 10th Dist.

Franklin No. 16AP-9, 2016-Ohio-7271, ¶ 15.

{¶ 51} Dr. Fujimura is a court psychologist for the Montgomery County Juvenile

Court. She has been employed by the court for 29 years, and part of her job is evaluating

youth for amenability. Amenability Tr. at p. 47-48. Dr. Fujimura evaluated Gregory in

2017 concerning the pending charges, and again in 2019. Id. at p. 49. According to Dr.

Fujimura, evaluating someone who has been in custody for three years is unusual and

gave her additional helpful information she might not usually have, primarily because the

detention facility keeps daily logs of a youth’s behavior, with a running narrative of

services provided and how the youth responded. The logs also note any discipline

problems and suggestions for future beneficial services. Id. at p. 51.

{¶ 52} The format of the detention program was called “Positive Behavior

Interventions and Support,” during which youths participate in programs, focus on their

positive actions, and earn points to progress through levels. Id. at p. 52. Another strong

component is education, with a full staff of teachers who help youths earn high school

diplomas during detention. Id. at p. 53. Among the other services available to Gregory

were a full mental health program, a psychiatrist on staff to assess youths and prescribe

medication, and treatment staff to provide individual and group counseling. Id. at p. 53-
 -22-

54.

{¶ 53} Gregory entered detention when he was 16 years old and a sophomore in

high school. Before the incident, he had a “very problematic history starting in middle

school through high school with a lot of discipline referrals for disrespectful and disruptive

behaviors, often resulting in disciplinary action.” Id. at p. 56. Both before and after

detention, Gregory had incidences of not doing his work in school, being disruptive in

class, and being disrespectful to teachers. Id. at p. 56-67. The length of Gregory’s

misconduct and similar behavior caused Dr. Fujimura concern over his amenability. Id.

at p. 57. Specifically, despite all the services provided and family support, Gregory was

still exhibiting the same issues during detention. Id. at p. 58. Moreover, while Gregory

was a sophomore when he came into detention, he was not able to attain his high school

diploma in three years. At age 19 and one-half, Gregory was still three courses short of

attaining a high school diploma. Id.

{¶ 54} During detention, Gregory had about 336 verbal corrections and about 15

discipline reports. Id. at p. 61. The daily logs given to the juvenile court for review

contained entries from September 5, 2016, when Gregory was first taken into detention,

through August 29, 2019, when Gregory was almost 19 and a half years old. See Joint

Exs. 2A-2D.6

{¶ 55} It is true, as Gregory suggests, that many of his discipline referrals were for

issues like being silly, dancing, and horseplay. However, a substantial number of

6 The amenability hearing began on October 7, 2019. Dr. Fujimura also indicated that
on September 5, 2019, Gregory was written up for having major contraband. While the
objects were just two pieces of gum, Gregory was openly breaking the rules; this was
consistent with Gregory’s having been disciplined many times for having contraband in
his room. Amenability Tr. at p. 77-78.
 -23-

discipline referrals were for being disrespectful of staff and others. Furthermore, issues

concerning disrespect persisted throughout the entire period of detention. E.g., October

27, 2016 (“Corrected for arguing with staff”); November 14, 2016 (“Corrected for trying to

argue with this Y/S [youth specialist] about changing his room”); December 14, 2016

(“Seems to have no regard for rules of detention and likes to argue with staff/peers”);

April 3, 2017 (“Sent out of class for lack of participation and verbally assaulting YS”); May

10, 2017 (“sent out of gym for not following directions”; “Corrected for arguing with peer”);

July 7, 2017 (“corrected for being disrespectful towards the Youth Specialist and others

on the unit”); October 10, 2017 (“sent from class for arguing with teacher”); November 11,

2017 (“corrected for disrespecting staff”); December 21, 2017 (“corrected for

disrespecting Y/S Mr. Wallace); March 25, 2018 (“received T/O [time-out] for being

disrespectful”); April 10, 2018 (“Corrected for * * * arguing with Ms. Young in class”); May

1, 2018 (“Corrected for mocking Y/S when correcting another youth[‘s] behavior”); June

21, 2018 (“Corrected for telling teacher what he [Gregory] is not going to do”); July 23,

2018 (“Corrected for his poor attitude toward Y/S”); August 29, 2018 (“Corrected for trying

to debate directions with teachers”); October 1, 2018 (“Sent out of class for trying to argue

with Ms. Tomlin”); November 19, 2018 (“Sent out of class for being disrespectful”);

January 20, 2019 (“Corrected for talking back to Y/S”); April 4, 2019 (“Y/S warned him

about his disrespectful behavior”); April 25, 2019 (“Corrected for silly behavior on G/M

laughing loudly when told he would be sent to his room he said I want to rest anyway”);

August 28, 2019 (“Sent out of class for talking back to Ms. Tomlin and getting out of chair

without permission. Fined 100 points today”). Joint Exs. 2A-2D.

{¶ 56} As indicated, these are but some of the infractions. Furthermore, while a
 -24-

particular infraction, like being silly, might not be major, the fact that such behavior

continued repeatedly over three years, despite correction, indicated Gregory’s lack of

respect for rules and a failure to conform his behavior after correction. For example,

Gregory was corrected for “silly” behavior about 57 times between November 2016 and

May 2019. Joint Exs. 2A-2D. He was corrected for having sagging pants 27 times

between February 2017 and March 2019. Id. On September 25, 2016, shortly after he

entered detention, Gregory was corrected for cursing or using foul language. He

thereafter had 63 more such violations between then and May 3, 2019. Id.

{¶ 57} It is true that Gregory had fewer discipline referrals after his case was

returned to juvenile court following the sentencing in the trial court. However, Dr.

Fujimura noted that Gregory had been described as sneaky and manipulative during

detention, that he presented himself in different ways to different people, and that getting

accurate answers from him was difficult. Amenability Tr. at p. 69, 76, and 79.

Regarding manipulation, Gregory told Dr. Fujimura during her second evaluation that he

would prefer to stay in the juvenile system because he had heard he could get out when

he was 21. She ascribed his improvement in behavior in recent months to his realization

that he would have less time and less consequences if he stayed in the juvenile system.

Id. at p. 85.

{¶ 58} Given Gregory’s failure to provide accurate information, Dr. Fujimura stated

that she was concerned about his amenability to being treated successfully within the

system and within the time before he turned 21. In this regard, the doctor stressed that:

If the information that Kylen gives changes, is not complete, if there’s

denial or difficulties, it’s going to make it really difficult to come up with
 -25-

accurate treatment.

Over the past three years, he’s had many opportunities to speak with

many different staff people, teachers, therapists, psychiatrists, detention

staff, and under this detention program, they look for the positives.

Regardless of what charges the youths come in with, the staff look for the

positives. They encourage the positives. They really work very hard with

the youths to give them every possible opportunity. Teachers offered

many times to work with Kylen individually, and he still was not able to

complete his work.

So given that, with all of this opportunity, if Kylen doesn’t choose to

be accurate with the information to really step up to the plate and say, I have

those issues, * * * I really want to get the help – if he doesn’t do that, no

treatment is going to be effective.

Amenability Tr. at p. 70.

{¶ 59} Dr. Fujimura also expressed concerns over community safety if Gregory

were kept within the juvenile system and then released, stating that:

Combining the logs with his reports, it still shows he tends to

underestimate. He’s told his probation officer, I haven’t been getting into

trouble. I look at the logs and see that he has been having problems.

He would tell the psychiatrist, I’m not having any issues in – with my

behavior, but that wasn’t the case. So I was able to compare with that.

If he’s not been forthright and he’s manipulative and he’s not

engaging in treatment and he’s selective with what he’s telling people, it’s
 -26-

hard to get an accurate assessment of risk. It’s hard to get an accurate

assessment of what treatment he needs or how long it will be effective.”

Amenability Tr. at p. 71.

{¶ 60} Based on what Dr. Fujimura reviewed and observed, she diagnosed

Gregory with oppositional defiance disorder and conduct disorder. Id. at p. 103-105.

Her opinion, based on a reasonable degree of psychological probability, was that Gregory

had “the ability to participate in treatment and do well academically,” but was not

“amenable to treatment services in the juvenile justice system based on his own

behaviors.” Id. at p. 111.

{¶ 61} In light of the above discussion, we conclude that substantial, not just some

rational and factual evidence, supported the juvenile court’s remand decision. Howard,

2d Dist. Montgomery No. 17298, 2018-Ohio-1863, at ¶ 15-16. Furthermore, the court

was not required to accept the testimony of any witness. “The weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact.” State v.

Anderson, 2015-Ohio-888, 30 N.E.3d 176, ¶ 39 (5th Dist.). As a result, the court did not

have to credit the testimony of Michael Wallace, who was one of Gregory’s youth

supervisors.

{¶ 62} In addition, without casting any aspersion whatsoever on Wallace’s

credibility, the fact is that Wallace was not with Gregory all the time; he was simply one

of many youth supervisors and teachers. As Dr. Fujimura noted, Gregory presented

himself in different ways to different people.

{¶ 63} In addition, Wallace’s testimony was simply incorrect in some respects.

For example, Wallace testified that Gregory always wore a black shirt, and that Gregory
 -27-

had always been a “level three,” which is the best behavior level. Amenability Tr. at p.

300. According to Wallace, a yellow shirt is worn for level one, an orange shirt is worn

for level two, and a black shirt is worn for level three. Level three is for the best behavior,

while level one is for the worst behavior. Id.

{¶ 64} Contrary to Wallace’s statement, however, Gregory was at a level one or

level two behavior for the majority of the time he was in detention. See Joint Ex. 2A-2D.

As one example, Gregory was reduced from level two to level one on July 4, 2018, for

instigating a fight with another youth. He remained at level one until July 30, 2018. In

the meantime, Gregory had some other major disciplinary problems, like instigating a

fight/horseplay on July 7, 2018, possessing contraband on July 14, 2018, and talking, on

July 19, 2018, about a television show that taught people how to escape. After going back

to level two on July 30, 2018, Gregory was again returned to level one on September 6,

2018, for having contraband. Id. at Ex. 2C.

{¶ 65} In fact, Gregory did not reach level three until October 28, 2018, which was

more than two years after he entered confinement. Id. He then remained on level

three until July 24, 2019, when he was reduced to level one for having contraband. Id.

at Ex. 2D. Ironically, this infraction occurred on the same day that Gregory met with a

probation officer who was conducting the court investigation for the amenability hearing.

This officer met with Gregory at 10:00 a.m. and explained that he would be preparing a

court investigation for the upcoming hearing. The officer also encouraged Gregory to

make good choices, avoid any conflict, and follow the detention rules. Id.

{¶ 66} However, later that day, during the second shift, which is from 3:00 p.m. to

11:00 p.m., Gregory received a fine for contraband and was reduced to a level one. Id.
 -28-

Gregory also was written up for major contraband on September 5, 2019, about a month

before the amenability hearing began.

{¶ 67} There is no question that some progress toward rehabilitation occurred

during the three years that Gregory was in detention. Dr. Fujimura acknowledged that

in some ways, Gregory had made progress. Amenability Tr. at p. 65. Nonetheless, for

the reasons discussed above, she did not believe adequate time remained for Gregory to

be successfully treated and rehabilitated within the juvenile system.

{¶ 68} Like Dr. Fujimura, Dr. Davis diagnosed Gregory with oppositional defiant

disorder and adolescent onset conduct disorder. Id. at p. 176. While Dr. Davis found

that the scale tipped toward amenability, his opinion could reasonably be classified as

only lukewarm. Id. at p. 181. Dr. Davis agreed with Dr. Fujimura that “the extent [to

which] Kylen decides to genuinely * * * address various factors, these factors to change

his behaviors, is of paramount importance related to this determination.” Id. In addition,

Dr. Davis stated that while Gregory had “a moderate degree of psychological factors for

amenability, he could not “give an opinion within a reasonable degree of psychological

certainty that [Gregory] is amenable due to the nature of the case and the nature of the

research.” Id. at p. 188.

{¶ 69} Even if Dr. Davis had been more positive, the juvenile court could give the

weight it desired to the expert opinions and did not have to accept Dr. Davis’s conclusions.

A juvenile court has discretion “to assess the significance of the psychological

evaluation's findings, including its weight and credibility, and then consider the totality of

the circumstances presented in the case.” Davis, 11th Dist. Lake No. 2002-L-127, 2003-

Ohio-6741, at ¶ 31.
 -29-

{¶ 70} We further stress the repeated recognition of Ohio courts “ ‘that “[t]he more

serious the offense, the less amenable the juvenile will be to rehabilitation in the juvenile

system.” ’ ” Howard, 2d Dist. Montgomery No. 27198, 2018-Ohio-1863, at ¶ 33, quoting

State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 43 (8th Dist.). (Other citation omitted.)

Notably, Gregory was convicted of a very serious offense. While the jury found Gregory

had committed reckless homicide rather than murder, R.B. was not the only victim; three

other individuals were also feloniously assaulted and harmed.

{¶ 71} Finally, as to Gregory’s remorse, Dr. Fujimura stated that Gregory had not

shown empathy for his own family, and that while Gregory said he was sorry for killing

R.B., he did not accept responsibility – he only said that it was not supposed to happen.

Id. at p. 92-83. Again, the juvenile court is the judge of credibility and chose to credit Dr.

Fujimura’s opinion.

{¶ 72} Based on the preceding discussion, we find no error in the juvenile court’s

decision to find that Gregory was not amenable to rehabilitation in the juvenile system

and to remand the case to adult court. Accordingly, Gregory’s Second Assignment of

Error is overruled.

IV. Conclusion

{¶ 73} Both of Gregory’s assignments of error having been overruled, the judgment

is affirmed.

.............

DONOVAN, J. and FROELICH, J., concur.
 -30-

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Ben M. Swift
Hon. Mary E. Montgomery